2312761 (Refugee)

The matter before the Administrative Appeals Tribunal concerned protection visa applications made by two individuals from Pakistan. The applicants had previously had their applications refused, and a review of that decision by the Federal Circuit and Family Court of Australia found an error of law, leading to the matter being remitted to the Tribunal for reconsideration. The Tribunal was tasked with determining whether the applicants met the criteria for a protection visa under section 36(2)(a) (the refugee criterion) or section 36(2)(aa) (the complementary protection criterion) of the Migration Act 1958 (Cth).

The central legal issues were whether the applicants, as Shia Muslims in Pakistan, had a well-founded fear of persecution for reasons of religion or membership of a particular social group, and whether they faced a real risk of significant harm if returned to Pakistan. The Tribunal was required to consider the applicants' claims in light of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, as well as relevant Ministerial Directions and Guidelines. This involved assessing the credibility of the oral and documentary evidence presented, including evidence relating to the applicants' status as a high-profile businessman and community leader, and their son's similar standing.

The Tribunal applied the principles that the onus is on the applicant to establish their claim and provide sufficient evidence, and that protection obligations arise if an applicant is a refugee or faces significant harm as a necessary and foreseeable consequence of removal. The Tribunal considered the rising official discrimination and societal intolerance in Pakistan, as well as the potential risks from both state and non-state actors. After considering the evidence and arguments, the Tribunal concluded that the matter should be remitted for reconsideration.